DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election without traverse of Group III, Claims 35-40 in the reply filed on 03/12/2026 is acknowledged.
Claims 22-34 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups I and II, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/12/2026.
Status of Claims
Claim amendment filed on 03/12/2026 is acknowledged.
Claims 1-21 remain cancelled. Claims 22-23, 29-30, and 35-36 are amended. Claim 41 is new.
Claims 22-41 are pending.
Claims 22-34 are withdrawn without traverse for being drawn to nonelected groups.
Claims 35-41 are being examined herein on merits.
Priority
This instant application 18294847, filed on 03/10/2025, is a 371 of PCT/KR2022/011683, filed on 08/05/2022, and claims foreign priority of REPUBLIC OF KOREA 10-2021-0103705 filed on 08/06/2021 and REPUBLIC OF KOREA 10-2022-0002693, filed on 01/07/2022. No English copy for the foreign priority document was uploaded.
Information Disclosure Statement
The information disclosure statement (IDS), filed on 02/02/2024, 10/18/2024, is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the Examiner.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 35-36 and 39-41 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bristow (CN107105663, 08/29/2017, Machine translation replied upon below; attached, PTO-892).
Bristow teaches a pesticide composition, specifically a nematicide composition (e.g., [0004]) (corresponding to instant claim 39), comprising component (A) at least one insecticide, preferably selected from groups including abamectin (corresponding to instant claim 40); and component (B) at least one fertilizer, preferably one or more amino acids and one or more micronutrients (e.g., Abstract; Claim 1; Claim 5; Claim 70), selected from glutamic acid, histidine, leucine, valine and other amino acids (e.g., Claim 71; [0034]) (corresponding to instant claims 35 and 41), wherein two or more amino acids are suitable (e.g., Claim 72), thus combination of two amino acids, e.g., histidine and glutamic acid, histidine and leucine, histidine and valine, etc., is suitable for the composition (corresponding to instant claim 36).
MPEP 2144.01 points out "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 35-41 are rejected under 35 U.S.C. 103 as being unpatentable over Bristow (CN107105663, 08/29/2017, Machine translation replied upon below; attached, PTO-892), in view of Ohara et al. (US20180116215, 05/03/2018).
Bristow teaches a nematicide composition (e.g., [0004]) comprising component (A) at least one insecticide, preferably selected from groups including abamectin, and component (B) at least one fertilizer, preferably one or more amino acids (e.g., Abstract; Claim 1; Claim 5; Claim 70), selected from glutamic acid, histidine, leucine, valine and other amino acids (e.g., Claim 71; [0034]), as discussed and applied to claims 35-36 and 39-41 above and incorporated herein.
Bristow further teaches that component A as pesticide in the composition can present at 1-85%, or 10-75%, or 15-70% (e.g., Claims 2-4), and component B, e.g., amino acids, can present at 5-95%, 10-75%, or 10-50% (e.g., Claims 42-44), resulting in amino acid is about 0.06 to 95 times (calculated from lowest amino acid/highest pesticide as 5%/85% to highest amino acid/lowest pesticide as 95%/1%) (overlapping with the range 0.001 to 100 times in instant claim 38).
Bristow does not teach combination ratio of amino acid is 1: 9 to 9: 1 as recited in instant claim 37.
Ohara throughout the reference teaches an agricultural composition against plant disease caused by fungi and bacteria comprising monosaccharide as an active ingredient in combination with one or more assistants including amino acid (e.g., Abstract; [0002]), such as amino acid or salts, such as L-glutamic acid, L-histidine, L-leucine, and L-valine (e.g., Claim 3; [0215]). Ohara teaches the composition can be mixed or used in combination with other agricultural chemicals including nematicides (e.g., [0105]).
Ohara exemplifies in composition containing amino acids, e.g., Test Example 12, amino acid or salt as Assistant 1 combined with D-tagatose shows improvement of control effects against cucumber downy mildew, grape vine downy mildew and cucumber powdery mildew (e.g., [0216], wherein 5 parts each of histidine, valine, leucine, glutamic acid, etc., can be used in the composition (Pg. 28, Table 12; [0216]); Test Example 8 [0194] including 5 (parts) L-glutamic acid, 5 L-histidine, 5 L-leucine, 5 L-valine (Pg, 21, Table 8) (representing amino acid combination ratio as 1:1, overlapping with combination ratio 1:9 to 9:1 in instant claim 37), with treatment concentration of D-tagatose 0.5% +assistant 0.5% (as 1 time of amino acid to pesticide weight ratio, falling within the range of 0.001 to 100 times in instant claim 38).
It would be prima facie obvious for a person with ordinary skills in the art prior to filing date to incorporate Ohara’s teaching of combination ratio resulted from amino acid amounts with the composition taught by Bristow to arrive at current invention. Bristow demonstrates the composition comprising nematicide abamectin with amino acids has the advantage of being easier to produce and apply as well as less costly than known treatment technologies [0005] with surprising exhibition of high activity in controlling various nematodes in broad range of plants (e.g., [0006]; [0010]; [0068-0070]), however, Bristow does not provide individual amino acid amount or combination ratio of more than one amino acids, e.g., two amino acids, in the composition, while Ohara teaches amino acid amounts in the composition exhibiting relative ratio of amino acids to each other, it would have motivated artisans to implement this piece of information like last piece of puzzle to arrive at the current invention. It would have provided artisans reasonable expectation of success. Therefore, the claimed invention is a simple combination of reagents known to be obvious materials that all already taught in prior art and discussed above. The idea for combining them flows logically from them having been individually taught in the prior art. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). Moreover, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use (MPEP §2144.07). See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). MPEP §2144.05(I) states that “A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). For this instance, the amino acid ratio in combination, the amino acid relevant amount to pesticide, both overlap with those taught by prior art. Furthermore, “[i]t would have been prima facie obvious for one of ordinary skill in the art to optimize additive amount through nothing more than “routine experimentation,” because of a reasonable expectation of success resulting from the optimization for desirable features of intended use of the composition (MPEP §2144.05 (II)). See Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969).
Conclusion
No claim is allowed.
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/DX.Z./ Examiner, Art Unit 1616
/SUE X LIU/ Supervisory Patent Examiner, Art Unit 1616
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